In its response to a consultation by the Office of the Scottish Charity Regulator’s draft guidance on the charity test, the SCVO said the test was not working because it allowed fee-paying schools that spent a small proportion of their income on means-tested bursaries to have charitable status.

"A primary concern with OSCR’s application of the charity test is the issue with the charitable status of some fee-paying schools and the interpretation of the ‘undue restrictions’ test that has been applied," the SCVO response said.

It cited figures from an OSCR report on fee-charging schools and charitable status, which found the median proportion of gross income that the 52 Scottish fee-charging schools on its register spent on means-tested bursaries was 6.1 per cent, although the figure for individual schools ranged from 4.6 per cent to 42.1 per cent.

The SCVO’s response said "many people would be unconvinced" that the median amount spent on bursaries could be sufficient to prevent the schools falling foul of the rules around "undue restrictions", which say that an organisation may not be considered charitable if its services are offered to an unjustifiably narrow group of people.

The SCVO’s response also called on the Scottish government to review charity law, because the "continued charitable status of some fee-paying schools shows that there are clearly still some problems with the charity test which should be rectified in a wide review of the Charities and Trustee Investment (Scotland) Act 2005".

It said: "We welcome OSCR’s commitment to maintain a higher vigilance with regard to fee-paying schools but don’t agree that the charity test as it stands is working if it allows schools of this type to have charitable status."

SCVO also said the definition of sport used in the draft guidance, which referred to "physical skill and exertion", could exclude some sports, such as shooting, that involve skill but little exertion. It said the Scottish Sports Association had raised a concern about this.